Monday, April 4, 2016

Bad Tweet – You’re Fired!

No, this is not a blog about Donald Trump andThe Apprentice.It’s about free speech, company policies, labor laws and social media.

Companies are appropriately wary of how they are depicted in social media. They want five stars, to be “liked,” “friended,” and praised in image and word. Their brand “trumps” all. They hire PR firms, often dedicating substantial internal personnel to the effort, and expect their employees to mirror these efforts. Often, you will see in employee manuals presented to newbies on their first day of work that make it clear that depicting their boss or company negatively in social media constitutes grounds for termination. It matters that much, and indeed companies often implement a strategic firing to bring that point home to everyone.

Recently, Chipotle (which has such a corporate policy) fired a server in one of their Philadelphia restaurants for tweeting a negative comment about the company’s low wages. The discharged employee felt that Chipotle’s policies just plain went too far and filed a grievance with the National Labor Relations Board seeking reinstatement and back pay. So just on the common sense merits, how would you rule if you had to resolve such a dispute?

“Social media rules at Chipotle that banned such critical comments violated the National Labor Relations Act, found the judge, who also is requiring the company to post signs acknowledging their error… Plaintiff James Kennedy, who is now working for an airline in a union job at Philadelphia International Airport told the Inquirer he is very happy with his new position, which he got about a month after being fired by Chipotle. He also said he would be happy to accept food vouchers from Chipotle for some of the damages he is due… ‘You cannot deny that their food is delicious,’ he told the newspaper, ‘but their labor policies were atrocious.’” American Bar Assn Journal, March 16th.

Is case this dispositive? Can employees say anything they like, short of actionable defamation, against their employers? Are there limits? Is there a balancing act between a senior manager making such a social media remark and an ordinary employee? After all, the NRLB treats managers and their charges quite differently. How about companies that are not engaged in interstate commerce? How far do NLRB rules apply?

In the end, the NLRB has sent a signal, loud and clear, that employers simply cannot rein in their workers and their ability to speak on social media, no matter how consistent with brand-protecting corporate policies. You can expect state regulators, faced with the same regulatory issues, to be severely influenced by NLRB rulings.

If you are an employer, and if you have social media policies, now is a very good time to take a look at those rules and discuss them with a competent labor lawyer. Otherwise, you may face a very big invoice for back wages, not to mention lots of legal fees along the way, from an employee discharged for a bad tweet. But for employees, it just might be a mistake to assume you can say anything at all against your employer without risk. This wasnota First Amendment case; it was not rooted in free speech. This, simply, is labor law… and there probably are limits.

I’m Peter Dekom, and running a company requires constantly keeping up with changes in employment mandates and practices.

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Peter's Bio

Peter J. Dekom practices law in Los Angeles and was formerly "of counsel" with Weissmann Wolff Bergman Coleman Grodin & Evall and a partner in the firm of Bloom, Dekom, Hergott and Cook. Mr. Dekom's clients include or have included such Hollywood notables as George Lucas, Paul Haggis, Keenen Ivory Wayans, John Travolta, Ron Howard, Rob Reiner, Andy Davis, Robert Towne and Larry Gordon among many others, as well as corporate clients such as Sears, Roebuck and Co., Pacific Telesis and Japan Victor Corporation (JVC). He has been listed in Forbes among the top 100 lawyers in the United States and in Premiere Magazine as one of the 50 most powerful people in Hollywood .

Mr. Dekom has been a management/marketing consultant, and entrepreneur in the fields of entertainment, Internet, and telecommunications. As a consultant to the state of New Mexico for almost a decade, he was instrumental in creating, writing and implementing legislation to encourage film and television production in the state and supervised the film loan program portion of that incentive structure until the spring of 2011. Mr. Dekom has also provided off-balance sheet, insurance-backed financing for major motion picture studios.

Mr. Dekom served on the board of directors of Imagine Films Entertainment while the company remained publicly traded and was a board member of Will Vinton Studios and Cinebase Software, among others, leaving upon change of ownership. He has also served as a member of the Academy of Television Arts and Sciences and Academy Foundation, Board of Directors, Chairman (now Emeritus) of the American Cinematheque, and on the Advisory Board of the Shanghai International Film Festival. He recently served on the Board of Governors for the America Bar Assn.’s Sports and Entertainment Law Section, where he often authored articles, delivered lectures and continues to be an active participant.

The Beverly Hills Bar Association honored Mr. Dekom as Entertainment Lawyer of the Year in 1994, the Century City Bar Association accorded him the same honor in 2004, and the Family Assistance Program named him Man of the Year in 1992 for his work with the homeless. In 2012, the American Bar Association, through its Forum on Sports and Entertainment Law, honored Mr. Dekom with its highest recognition for entertainment lawyers, the Ed Rubin Service Award. Author of dozens of scholarly articles, Mr. Dekom also is the co-author of Not on My Watch; Hollywood vs. the Future (New Millennium Publishing, 2003) with Peter Sealey and author of Next: Reinventing Media, Marketing and Entertainment (HekaRose Publishing Group 2014). He has served as an adjunct professor in the UCLA Film School, a lecturer (entertainment marketing) at the University of California, Berkeley Haas School of Business as well as being a featured speaker at film festivals, corporations, universities and bar associations all over the world.

Mr. Dekom graduated from Yale in 1968 (BA), and graduated first in his class in 1973 from the UCLA School of Law (JD). He is married to Kelley Choate, an MBA and former art gallery-owner who evolved into a renowned micro-collage artist in her own right. He also has a son, Christopher (b. 1983), who is a Duke University graduate, a Chartered Financial Analyst, a 2013 Darden (UVa) MBA graduate, and is currently an executive with a Los Angeles-based media and entertainment company. Chris' wife, Stephanie (a 2013 George Washington University MD grad), is a neonatal pediatrics 'fellow' at a major Los Angeles hospital